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FMLA Same-Sex Spouse Final Rule Enjoined in Some States

One day before the U.S. Department of Labor’s Family & Medical Leave
Act (“FMLA”) same-sex spouse final rule took effect on March 27, 2015, the U.S.
District Court for the Northern District of Texas ordered a preliminary
injunction in
Texas v. U.S.,
staying the application of the Final Rule for the states of Texas, Arkansas,
Louisiana, and Nebraska. This ruling directly impacts employers
responsible for the proper administration of employee benefits that are located
or have employees living in these four states.

Background

In United States v.
Windsor, the U.S. Supreme Court struck down Section 3 of the
Defense of Marriage Act (“DOMA”) as unconstitutional, finding that Congress did
not have the authority to limit a state’s definition of “marriage” to “only a
legal union between one man and one woman as husband and wife.”
Significantly, the
Windsor decision left intact Section 2 of DOMA
(the “Full Faith and Credit Statute”), which provides that no state is required
to recognize same-sex marriages from other states. Further to the
President’s directive to implement the
Windsordecision in all relevant
federal statutes, in June 2014, the DOL
proposed rulemaking to update the regulatory definition of
spouse under the FMLA. The Final Rule is the result of that endeavor.

As we previously reported, the Final Rule adopts the
“place of celebration” rule, thus amending prior regulations which followed the
“place of residence” rule to define “spouse.” For purposes of the FMLA,
the place of residence rule determines spousal status under the laws where the
couple resides, notwithstanding a valid out-of-state marriage
license. The place of celebration rule, on the other hand,
determines spousal status by the jurisdiction in which the couple was married,
thus expanding the availability of FMLA leave to more employees seeking leave
to care for a same-sex spouse.

The Court’s Decision

Plaintiff States Texas, Arkansas, Louisiana, and Nebraska sued, arguing
the DOL exceeded its authority by promulgating a Final Rule that requires them
to violate Section 2 of the DOMA and their respective state laws prohibiting
the recognition of same-sex marriages from other jurisdictions. The Texas
court ordered the extraordinary remedy of a preliminary injunction to stay the
Final Rule pending a full determination of the issue on the merits.

The court first found that the Plaintiff States are likely to succeed on
at least one of their claims, which assert that the Final Rule improperly
conflicts with (1) the FMLA, which defines “spouse” as “a husband or wife, as
the case may be” and which the court found was meant “to give marriage its
traditional, complementarian meaning”; (2) the Full Faith and Credit Statute;
and/or (3) state laws regarding marriage, which may be preempted by the Final
Rule only if Congress intended to preempt the states’ definitions of marriage.

The court then held that the Final Rule would cause Plaintiff States to
suffer irreparable harm because, for example, the Final Rule requires Texas
agencies to recognize out-of-state same-sex marriages as valid in violation of
the Texas Family Code.

Lastly, although finding the threatened injury to both parties to be
serious, the court decided that the public interest weighs in favor of a
preliminary injunction against the DOL. The court found in favor of
upholding “the stability and consistency of the law” so as to permit a detailed
and in-depth examination of the merits. Additionally, the court pointed
out that the injunction does not prohibit employers from granting leave to
those who request leave to care for a loved one, but reasoned that a
preliminary injunction is required to prevent the DOL “from mandating
enforcement of its Final Rule against the states” and to protect the states’
laws from federal encroachment.

What This Means for Employers

Although the stay of the Final Rule is pending a full determination of the
issue on the merits, the U.S. Supreme Court’s decision in
Obergefell v.
Hodges
likely
will expedite and shape the outcome of the Texas court’s final ruling. In
Obergefell, the Supreme Court
will address whether a state is constitutionally compelled under the Fourteenth
Amendment to recognize as valid a same-sex marriage lawfully licensed in
another jurisdiction and to license same-sex marriages. Oral arguments in
Obergefell are scheduled for Tuesday, April 28,
2015, and a final ruling is expected in late June of this year.

Before the U.S. Supreme Court decides Obergefell,
however, employers in Texas, Arkansas, Louisiana and Nebraska are advised to
develop a compliant strategy for implementing the FMLA—a task that may be
easier said than done. Complicating the matter is a
subsequent DOL filing in Texas
v. U.S.
where the DOL
contends that the court’s order was not intended to preclude enforcement of the
Final Rule against persons other than the named Plaintiff States, and thus
applies only to the state governments of the states of Texas, Arkansas,
Louisiana, and Nebraska.

While covered employers are free to provide an employee with non-FMLA
unpaid or paid job-protected leave to care for their same-sex partner (or for
other reasons), such leave will not exhaust the employee’s FMLA leave
entitlement and the employee will remain entitled to FMLA leave for covered
reasons. We recommend that covered employers that are not located and do
not have employees living in one of the Plaintiff States amend their
FMLA-related documents and otherwise implement policies to comport with the
Final Rule, as detailed in EBG’s
Act
Now
Advisory, DOL Extends FMLA
Leave to More Same-Sex Couples. Covered employers who are
located or have employees living in one of the Plaintiff States, however,
should confer with legal counsel to evaluate the impact of
Texas v. U.S. and react accordingly, which may
depend on the geographical scope of operations.